Decision Date: November 29, 2004

Panel: Margaret Eriksson

Keywords:  Forest Act – s. 143, 146, 147; Interpretation Act – s. 36(1); stumpage; jurisdiction; statutory amendment; review procedure

This was a preliminary jurisdictional issue raised in the context of an appeal by Western Forest Products Limited (“Western”) of several stumpage advisory notices (“SANs”) issued for a tree farm licence between November 9, 2001 and January 8, 2003 by a Regional Appraisal Coordinator.  The jurisdictional issue arose because of amendments to the Forest Act (the “Act”), effective November 4, 2003, which eliminated the requirement that stumpage determinations be reviewed by a regional manager of the Ministry of Forests before they could be appealed to the Commission.

Western argued that the Regional Manager’s rejection of Western’s original request for a review constituted a review and, alternatively, that their appeal was continuing when the amendments occurred and so must follow post-amendment procedures.  Lastly, Western argued that if they had a right of review under the previous version of the Act, they had waived that right by filing an appeal with the Commission.

The Government submitted that the Commission had jurisdiction because the right of the appeal remained even though the right of review was eliminated.  They also argued that a review before a regional manager was procedural and was not a substantive right that had accrued before the Act was amended.

The Commission found that the Regional Manager had not conducted a review of the SANs before the amendment to the Act came into force.  The Commission also found that the “right” to a review was procedural in nature, and not akin to the substantive right of appeal to an administrative tribunal.  The Commission held that, because the right of appeal remained, the elimination of the review process did not affect Western’s rights.

The Commission distinguished this case from the appeal in Abitibi-Consolidated Company of Canada v. Government of British Columbia (Appeal No. 2004-FA-006(a), June 10, 2004) (unreported), on the basis that the facts in the two appeals were different.

The Commission found that no review was required and the Commission had jurisdiction to hear the appeal.